Hello, everyone. It s wonderful to be here today with you at the 17th annual Juvenile Defender Leadership Summit.

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1 REMARKS OF ROBERT L. LISTENBEE ADMINISTRATOR OFFICE OF JUVENILE JUSTICE AND DELINQUENCY PREVENTION AT THE JUVENILE DEFENDER LEADERSHIP SUMMIT SCOTTSDALE, AZ NOVEMBER 2, 2013 REMARKS AS PREPARED FOR DELIVERY Hello, everyone. It s wonderful to be here today with you at the 17th annual Juvenile Defender Leadership Summit. The Office of Juvenile Justice and Delinquency Prevention has long been a supporter of this summit, which offers excellent training to juvenile defenders from all 50 states, the District of Columbia, and Puerto Rico. With participants from urban, suburban, rural, and tribal areas, this summit has a breadth and scope like no other in the field of juvenile defense. I want to especially acknowledge Patti Puritz, Executive Director of the National Juvenile Defender Center. I have the deepest respect for Patti s expertise and her commitment over the last 35 years to improving the juvenile justice system. She is a true exemplar of leadership, bigpicture thinking, and resourcefulness in the effort to ensure that children have adequate access to competent counsel throughout the duration of the court process. I m especially excited to be part of this event because building the capacity of the juvenile defense bar and improving access to counsel and the quality of representation for children in the justice system has been a passion of mine for decades back to when I served as Chief of the Juvenile Unit of the Defender Association of Philadelphia and when I was a trial lawyer with the association. My relationship with the National Juvenile Defender Center goes back many years as well. I served for many years as head of the Northeast Regional Juvenile Defender Center, where I learned firsthand about the challenges but also the opportunities for making real progress in efforts to ensure the due-process rights of children. During my days as a juvenile defender, I got to know many of you personally. I look forward to talking with many of you this afternoon on an informal basis and hearing your thoughts and perspectives on the current state of juvenile defense, the issues we face, and how we might most effectively move forward. 1

2 President Obama appointed me to the position of Administrator of the Office of Juvenile Justice and Delinquency Prevention in March, so I ve been in this new role for about seven months. I am delighted to report that, under the leadership of Attorney General Eric Holder, indigent defense is a top priority at the Justice Department. While speaking at the June screening of the documentary, Gideon s Army, Attorney General Holder noted that, America s indigent defense systems continue to exist in a state of crisis. He then harkened back to his days as a judge in Washington, DC, noting, Inadequate systems of defense, wrongful convictions, and unjust sentences result in excessive waste. They exact a human toll that s impossible to measure. And they erode the public s faith in the ability of our criminal justice system to deliver just outcomes. Only a few months after he had been in office, the Attorney General revived the Department s then-dormant efforts to address the indigent defense crisis in our country. The Department had already taken some important steps in the 1990s, when Attorney General Holder served as Deputy Attorney General under Janet Reno. In February 2010, the Justice Department organized a National Symposium on Indigent Defense the first such symposium to be held in more than decade. The symposium served the dual purpose of assessing how far the country has come since the 1999 symposium and identifying critical areas for improvement moving forward. The following month, the Justice Department established the Access to Justice Initiative, which is currently overseen by Associate Attorney General Tony West. The initiative aims to improve indigent defense, enhance access to legal services, and help the justice system efficiently deliver outcomes that are fair and accessible to all regardless of wealth and status. In the last few years, the initiative has helped support the development of quality indigent defense systems nationwide and expanded research on the delivery of indigent defense services. In the area of juvenile justice, the Access to Justice Initiative used the Civil Rights Division s finding of serious due process and equal protection violations in the juvenile court in Shelby County, Tennessee, to increase dialog. The Shelby County investigation concluded that children in the juvenile justice system were not receiving adequate due process protections, and that African American children were being treated differently and more harshly. Following the finding, the Access to Justice Initiative helped convene a meeting of advocacy groups, researchers, foundations, and juvenile justice professionals to help them understand the implications of the Shelby County findings in their own communities. This important case served as a teachable moment to help other professionals understand how to safeguard the constitutional rights of juveniles. Under the leadership of Eric Holder, the Justice Department has set indigent defense as an important funding priority as well. 2

3 Just 3 days ago, the Attorney General announced a total of $6.7 million in grants to state and local criminal and civil legal services organizations across the country that provide legal defense services for the poor. The FY 2013 grants, which promote cost-effective innovations to improve indigent defense, are administered by the Office of Justice Programs Bureau of Justice Assistance, National Institute of Justice, and Office of Juvenile Justice and Delinquency Prevention. The Bureau of Justice Assistance grants included awards to: Gideon s Promise, a nonprofit organization that partners with public defender offices to build a community of attorneys committed to indigent defense reform. The states of Mississippi, Tennessee, and Utah to assist jurisdictions to assess the effectiveness of their indigent defense systems, develop recommendations to ensure services are provided consistently throughout the state, and determine appropriate measures for evaluating a defender services program. The Measures for Justice initiative to provide a framework for evaluating local criminal justice systems against a national standard of excellence. The National Association of Criminal Defense Lawyers to develop pretrial release manuals for the defense bar and to provide training in effective bail advocacy. The Tulalip Foundation, the Native American Rights Fund, and the William Mitchell College of Law to improve access to tribal justice systems and strengthen representation of indigent defendants in civil causes of action and in criminal cases under Indian tribes jurisdiction. The National Institute of Justice grant was awarded to the RAND Corp. in Pittsburgh for an empirical evaluation of the holistic approach to individual defense, which includes the defense attorney as one member of an interdisciplinary team providing comprehensive services to address defendants legal and social needs. Our Office made two awards, totaling more than $1 million, to the National Juvenile Defender Center to improve juvenile indigent defense across the nation. The first award, in the amount of $400,000, will provide juvenile defense counsel with customized technical assistance, training, and resources for policy development and reform. The primary objectives of this program are to provide technical support that is responsive to specific needs at the local, state, regional, and national levels; professional development and training opportunities; publications and resources designed to improve juvenile indigent defense and system effectiveness; and opportunities for the juvenile defense bar to take leadership in policy development and systemic reform. The second award, in the amount of $695,000, will support the Juvenile Indigent Defense Special Initiative to reduce the overrepresentation of minority youth in the juvenile justice 3

4 system and to improve access to counsel and quality of representation for youth with unique needs, including children with disabilities, substance abuse problems, and language-access needs; and lesbian, gay, bisexual and transgender youth. OJJDP is committed to advancing and improving juvenile defense over the next several years. There s a lot of other exciting activity in our Office. We are working hard to raise national awareness about the life-long collateral consequences of a juvenile adjudication consequences that include records that are open to the public, expulsion from school, the denial of public benefits, the inability to qualify for military service, and difficulties obtaining employment or professional licenses, among others. Our State Training and Technical Assistance Center recently hosted a live chat on this topic. Going forward, we plan to support the creation and dissemination across the country of checklists on juvenile collateral consequences and trainings based on them. Because policy is a key driver of change and reform, we will also be encouraging the use of juvenile justice policy analysts in states and localities to help create comprehensive policies that meet the needs of kids, while ensuring that justice is served. All of these activities stem from our deep and abiding belief that the juvenile justice system is not the adult criminal justice system in miniature. The juvenile justice system is and should continue to be a fundamentally different system with vastly different goals and responsibilities. Juvenile defenders require specialized knowledge and understanding of adolescent development; the skills to address unique hearings such as detention, transfer, and disposition; and the capacity to engage their young clients in effective decision-making toward their defense. At the Office, we know that juvenile defense must be further developed as a distinct legal specialty because we have carefully examined recent advances in the scientific understanding of adolescent development. We are also bound by decisions that have come down to us from the Supreme Court which based its own rulings on these recent scientific advances. Research on brain development over the past two decades has shown that the areas of the brain responsible for the ability to inhibit impulses and weigh consequences before taking action are not fully developed in adolescents. In fact, they re not fully developed until people reach their mid-20s. The vast majority of adolescents grow out of their difficulty in controlling impulses and weighing consequences as their brains mature. This means that juveniles are less culpable for their actions than adults. It also means that juveniles, precisely because they are still growing, are much more promising candidates for rehabilitation and change. A report we commissioned from the National Academy of Sciences it s called Reforming Juvenile Justice: A Developmental Approach makes recommendations as to how these findings should be applied to the juvenile justice system. The report emphasizes that accountability practices should not be carried over from criminal courts to juvenile courts; in particular, 4

5 confinement should be used only in rare circumstances such as when a youth poses a high risk of harming others. Well-designed, community-based programs are more likely than institutional confinement to reduce recidivism and facilitate healthy social and moral development for most young offenders, the report says. Over the course of more than three decades, the High Court has repeatedly found that juvenile defendants are fundamentally different from adult defendants and that, accordingly, they must be treated differently. In Eddings v. Oklahoma in 1982, the judges noted, youth is more than a chronological fact. It is a time and condition of life when a person may be most susceptible to influence and to psychological damage. Holding that the death penalty is unconstitutional for offenders under 18 in Roper v. Simmons (2005), they said, From a moral standpoint it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor's character deficiencies will be reformed. In Graham v. Florida (2010), they expanded their reasoning to forbid life in prison without parole for juveniles who committed nonhomicide crimes, arguing, Maturity can lead to that considered reflection which is the foundation for remorse, renewal, and rehabilitation. Just last year in Miller v. Alabama, they held that mandatory life in prison without parole sentences for juvenile homicide offenders were unconstitutional, saying, Mandatory life without parole for a juvenile precludes consideration of his chronological age and its hallmark features among them, immaturity, impetuosity, and failure to appreciate risks and consequences. Again and again, our nation s highest court has held that children are not mini-adults. In addition to considering what we know about adolescent development as we work to reform juvenile justice policy, we also need to consider the history of exposure to violence among system-involved youth and its impact on their development. The vast majority of children in the juvenile justice system have been exposed to multiple types of traumatic violence, crime, or abuse over a course of many years in their homes, schools, and communities and they are still living with the trauma of those experiences. The science tells us that traumatic violence in early childhood and throughout adolescence can delay or derail brain development, dramatically reducing a young person s ability to delay impulses and gratification, and to tolerate disagreement and conflicts with other people to a degree even beyond that of normal adolescents. There are evidence-based interventions that can help to repair the emotional damage done to these children as a result of exposure to violence. These evidence-based approaches can put these 5

6 kids on a course to be well-adjusted, law-abiding, and productive citizens. But too often, these interventions are not used simply because they are not known or appreciated. I was privileged to serve as co-chair of the Attorney General s Task Force on Children Exposed to Violence, and in our final report to the Attorney General in December 2012, the task force recommended that we as a nation rethink the juvenile system in light of what the research is telling us about: The prevalence of previous exposure to violence among children in the system. The detrimental impact of this exposure. The interventions that have proven successful in addressing the trauma they are living with. Our task force recommended incorporating trauma-informed care into decisionmaking and responses to children throughout the juvenile justice system. In September, the Institute of Medicine released a study that our Office commissioned called Confronting Commercial Sexual Exploitation and Sex Trafficking of Minors in the Unites States. According to the report, approximately 70 percent of youth who are trafficked cite a history of childhood sexual abuse as an influential factor in their becoming involved in commercial sexual exploitation. The report lays out three basic principles: These crimes should be understood as acts of abuse and violence against children and adolescents. Minors who are commercially sexually exploited or trafficked for sexual purposes should not be considered criminals. Identification of victims and survivors as well as any interventions should do no further harm. Another study supported by our Office the Northwestern Juvenile Project shows that the majority of children in detention have mental health disorders that urgently require treatment. And yet many of these children never receive the treatment they need, either in confinement, or when they return to their communities. Despite this knowledge regarding adolescent development and the high rates of exposure to violence and mental health disorders among youth in our justice system, harsh juvenile sentences are routinely imposed in our courts. The system often looks at a child who has made a mistake perhaps a grave mistake and then too often resorts to secure detention, or transfers them to adult criminal court, or inappropriately commits these young people to institutional confinement. When the justice system responds with punishment, these children may be pushed further into the juvenile and criminal justice systems and permanently lost to their families and society. This is precisely why every child accused of a crime needs a competent defense attorney. A welltrained juvenile defense bar is critical to ensuring that children are treated fairly and humanely in the justice system and ensuring that these vulnerable young people get the treatment and services they so urgently need to heal and to thrive as adults in their communities. 6

7 I would challenge you, if you haven t done so already, to take the time to delve deeper into some of the research I just described. This research and other similar studies are altering the framework through which we view and practice juvenile justice. We all need to seize the opportunity for reform that this science has given us and we need to apply this knowledge broadly to improving our delivery of services to youth in the juvenile justice system. I focused just now on the need for specialized training and knowledge. But we are all only too aware of the other systemic problems in juvenile defense whether it s the late timing and appointment of counsel, the high rates of waiver of counsel, the lack of caseload and workload analysis, inadequate access to investigators, or a dearth of resources. While these challenges are universal, I am convinced that the solutions to these problems are arrived at locally. Each community is unique, and must come up with its own solutions, drawing on its own well-spring of talent and resources. This is why leadership at the local and regional levels is so important. Leadership is key to galvanizing these resources. The federal government can lead a national conversation, raise national awareness, support data collection and research, disseminate the latest findings from that research, and suggest broad outlines for policy and practice. But the leadership on the ground must come from you the experts and practitioners in this room and your colleagues back home. I believe that defenders need to be far more aggressive in promoting what they do and why it is fundamental to the operation of our justice system. I also believe that the juvenile defense community needs to be much more proactive in establishing those all-important partnerships to make a difference in their communities partnerships with law enforcement, judges, prosecutors, probation officers, and policymakers. But also important are partnerships with the philanthropic sector and funding sources at the state level. Public defender offices as a rule don t have the resources to hire a professional grant writer. But here s where we might need to be a bit bolder in finding ways to get the job done with the resources that are on hand. In Pennsylvania, I was gratified to see some people on our staff with no formal training in funding proposals just roll up their sleeves, learn the ropes of grant writing, and apply for the grants. These people weren t magicians. Yet a good number of these applications were successful. One grant funded a policy analyst, who, among other activities, traveled to 30 states to argue at the legislative level on juvenile issues related to the Sex Offender Registration and Notification Act. These activities helped reform the Act so it could be more effectively and judiciously applied to juveniles. 7

8 Another grant funded the creation of the Juvenile Defenders Association of Pennsylvania, which helped pool resources and bring consistency to the patchwork approach to juvenile justice in the state. The association produced guidelines and a training manual for juvenile defense attorneys in our state, expanded training programs to reach defenders across the state, created a model expungement protocol, and helped to develop model juvenile defense units in diverse counties. The association also provided a context for defenders in the larger, better-resourced offices to step forward and assist defenders in smaller offices that did not have access to the same resources. It was an inspiring show of leadership, service, and collaboration. As part of Pennsylvania s participation in the MacArthur Foundation s Models for Change initiative, we became members of the Juvenile Indigent Defense Action Network, or JIDAN, an effort aimed at developing targeted strategies to improve juvenile indigent defense policy and practice. Chief among our achievements as part of JIDAN was the development of the Pennsylvania Juvenile Collateral Consequences Checklist. Attorneys in particular must fully understand collateral consequences, so they can explain the sometimes significant impact of these to clients and their families before any decisions are made. To help overburdened and under resourced attorneys and other professionals, we created a simple, 16-page document, which includes an easily scannable overview of consequences. South Carolina has now replicated and expanded this collateral consequences checklist and it s been distributed to 30,000 people in that state. Full disclosure: South Carolina s checklist is not only more comprehensive than the one we originally came up with in Pennsylvania, but their distribution exceeded ours by 20,000 people. As a loyal fan of Pennsylvania, that s hard for me to admit! But the point really is isn t it that no one can do this alone. Someone needs to start somewhere, and then others build on that foundation. We must share information, share resources, and cooperate in an intentional way whether at the local, state, or national level. And, as I mentioned earlier, all of us need to be more creative in the way we use limited resources. Despite the challenges of this work which at times seem daunting I want to conclude on a note of profound encouragement and a call to action. Emerging science and case law, coupled with policy advancements and state-based juvenile justice reform initiatives, have created an unprecedented window of opportunity for reform of juvenile defense delivery. All of us in the juvenile justice arena must do our part to seize this opportune moment to bring the day closer when due-process rights are ensured for every child, regardless of race, ethnicity, or socioeconomic status. 8

9 In a speech in June at the American Constitution Society s Annual Convention, Associate Attorney General Tony West said, For if the arc of history bends toward justice and I believe it does then it bends not by its own weight but by the hands of those who dare to reach. Let us all dare to reach. Thank you. 9

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